Citation Nr: 0303370
Decision Date: 02/26/03 Archive Date: 03/05/03
DOCKET NO. 02-02 415 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for
dislocation of the articular cartilage of the right knee.
2. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for the
residuals of left ankle sprain.
[The issues of entitlement to service connection for right
knee and left ankle disorders will be addressed in a later
decision.]
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. Douglas, Counsel
INTRODUCTION
The veteran served on active duty from September 21, 1944, to
December 30, 1944. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from a June 2000 rating
decision by the Los Angeles, California, Regional Office (RO)
of the Department of Veterans Affairs (VA).
Although the RO has adjudicated these issues on the merits,
the Board is required to determine whether new and material
evidence has been presented when a claim was previously
finally disallowed. For this reason, the Board has listed
the issues on the title page as whether new and material
evidence has been submitted to reopen the claims for service
connection.
[The Board is undertaking additional development on the
issues of entitlement to service connection for right knee
and left ankle disorders based on de novo review pursuant to
the provisions of 38 C.F.R. § 19.9(a)(2). When it is
completed, the Board will provide notice of the development
as required by 38 C.F.R. § 20.903. After giving notice and
reviewing the appellant's response to the notice, the Board
will prepare a separate decision addressing these issues.]
FINDINGS OF FACT
1. In November 1945 the Board denied service connection for
dislocation of the articular cartilage of the right knee on
the basis that evidence submitted did not show a pre-existing
knee disorder was aggravated during active service.
2. Competent evidence added to the record since the November
1945 decision includes new evidence which bears directly and
substantially upon the matter of whether a right knee
disorder was aggravated by service, and is so significant
that it must be considered in order to fairly decide the
merits of the claim.
3. In a January 1945 rating decision service connection was
denied for chronic, recurrent left ankle sprain on the basis
that evidence submitted did not show a pre-existing ankle
disorder was aggravated during active service; the veteran
was notified of, and did not timely appeal, that decision.
4. Competent evidence added to the record since the January
1945 decision includes new evidence which bears directly and
substantially upon the matter of whether a left ankle
disorder was aggravated by service, and is so significant
that it must be considered in order to fairly decide the
merits of the claim.
CONCLUSIONS OF LAW
1. New and material evidence has been submitted, and the
claim of entitlement to service connection for a right knee
disorder may be reopened. 38 U.S.C.A. § 5108 (West 1991);
38 C.F.R. § 3.156 (effective prior to August 29, 2001).
2. New and material evidence has been submitted, and the
claim of entitlement to service connection for a left ankle
disorder may be reopened. 38 U.S.C.A. § 5108 (West 1991);
38 C.F.R. § 3.156 (effective prior to August 29, 2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107(West Supp. 2002)) became law. Regulations
implementing the VCAA have now been published. 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to assist
provisions of the VCAA do not apply until a previously denied
claim has been reopened. 38 U.S.C.A. § 5103A(f).
Regulations implementing the VCAA also include a new
definition of new and material evidence. However, that
provision applies only to claims to reopen filed on or after
August 29, 2001. Hence, it does not apply in the instant
case.
In correspondence dated in April 2001 the RO notified the
veteran and his accredited representative of the VCAA and of
the evidence necessary to substantiate his claims with
identification of the parties responsible for obtaining
pertinent evidence. As the veteran has been kept apprised of
what he must show to prevail in his claims, what information
and evidence he is responsible for, and what evidence VA must
secure, there is no further duty to notify. See generally
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The Board finds that the duty to assist and duty to notify
provisions of the VCAA are fulfilled. No additional
assistance or notification to the veteran is required. He is
not prejudiced by the Board's review of the case based on the
current record.
New and Material Evidence Claims
Under 38 U.S.C.A. § 5108, "[i]f new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the Secretary shall reopen the claim and review
the former disposition of the claim." "New and material
evidence" means evidence not previously submitted to agency
decisionmakers which bears "directly and substantially"
upon the specific matter under consideration. Such evidence
must be neither cumulative nor redundant, and, by itself or
in connection with evidence previously assembled, such
evidence must be "so significant that it must be considered
in order to fairly decide the merits of the claim."
38 C.F.R. § 3.156(a); See Hodge v. West, 155 F. 3d 1356,
1363 (Fed. Cir. 1998). [As was previously noted, an amended
version of 38 C.F.R. § 3.156(a) is effective only for
petitions to reopen filed on or after August 29, 2001, and
does not apply in the instant case.]
Right knee Disorder
In November 1945 the Board denied service connection for
dislocation of the articular cartilage of the right knee.
The decision is final. 38 U.S.C.A. § 7104; 38 C.F.R.
§ 20.1100.
The evidence of record in November 1945 included service
hospital records showing the veteran reported he had
dislocated his right knee prior to service in 1942 while
playing baseball. Records dated in October 1944 show he was
treated for right knee effusion subsequent to a subluxation
of the right meniscus. An x-ray examination revealed a
circumscribed opacity in the joint space suggestive of an old
injury. A December 1944 medical board found his right knee
disorder existed prior to service and was not aggravated by
active service. A January 1945 private medical opinion by
Dr. J.C.V. noted the veteran had been seen before service and
that his knee was much worse than before service. The
November 1945 Board decision denied service connection for
aggravation of dislocation, articular cartilage of the right
knee on the basis that evidence submitted did not show a pre-
existing knee disorder was aggravated during active service.
The evidence submitted since the November 1945 Board decision
includes the veteran's statements relating a present knee
disorder to an injury during active service and statements
noting that he was a retired physician. The evidence also
includes VA and private medical reports demonstrating present
diagnoses of arthritis without opinion as to etiology.
Based upon a comprehensive review of the record, the Board
finds the evidence added to the claims file since the last
final decision includes new evidence which bears directly and
substantially upon the specific matter under consideration,
and is so significant that it must be considered in order to
fairly decide the merits of the claims. As the veteran is a
retired physician, his opinions as to aggravation are
competent evidence tending to prove an element that was the
basis for the prior Board denial of the claim. Therefore,
the recently submitted evidence is "new and material," and
the claim must be reopened.
Left Ankle Disorder
In a January 1945 rating decision VA denied the veteran's
claim for entitlement to service connection for a left ankle
disorder. The veteran did not appeal that determination and
it has become final. 38 U.S.C.A. § 7105(d) (West 1991 &
Supp. 2002); 38 C.F.R. § 3.104 (2002).
The evidence of record in January 1945 included service
hospital records showing the veteran reported he had broken
his left ankle prior to service in 1941 while playing
basketball. Reports show that in September 1944 he sprained
his left ankle after stepping on a rock. An x-ray
examination revealed small unattached calcifications to the
malleoli, but no evidence of recent pathology. A
December 1944 medical board determined the veteran's left
ankle disorder existed prior to service and was not
aggravated by service. The January 1945 rating decision
denied service connection for chronic, recurrent left ankle
sprain on the basis that evidence submitted did not show a
pre-existing ankle disorder was aggravated during active
service.
Evidence submitted since the January 1945 rating decision
includes the veteran's statements relating his present left
foot arthritis to an injury in service and statements noting
that he was a retired physician. The evidence also includes
VA and private medical reports demonstrating present
diagnoses of arthritis without opinion as to etiology.
Based upon a comprehensive review of the record, the Board
finds the evidence added to the claims file since the last
final decision includes new evidence which bears directly and
substantially upon the specific matter under consideration,
and is so significant that it must be considered in order to
fairly decide the merits of the claim. As the veteran is a
retired physician, his opinions as to aggravation are
competent evidence. Therefore, the Board finds the recently
submitted evidence is "new and material," and the claim
must be reopened.
ORDER
The appeal to reopen a claim of service connection for a
right ankle disorder is granted.
The appeal to reopen a claim of service connection for a left
ankle disorder is granted.
GEORGE R. SENYK
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.